Goldstone and the Rule of Law

The International Court came into being by virtue of the Rome Treaty in 2002.. To date, 110 states have signed on and a further 38 states have signed but not ratified it. The U.S. and Israel are among those who have yet to ratify the treaty.

The same year, Richard Goldstone delivered a speech at a Toronto synagogue arguing that it was in the interests of Israel and the U.S. that they sign on. It was asked if Israel should sign on as she would never get a fair hearing. Goldstone vehemently disagreed.

Fast forward: In the days before to Operation Cast Lead, during a period when the Gazans were committing war crimes daily by firing rockets indiscriminately at Israeli civilians, Dr. Abraham Bell in his article on International Law and Gaza set out the basic principles and subtitled his article The Assault on Israel's Right of Self Defense.

But what do these principles and rules he set out mean in practice? Did Israel have no choice but to invade or could it just have used artillery and bombs, even unintelligent inexpensive bombs?

Bruce Tucker Smith, JD, LL.M. (International Law), Lt Col USAFR (ret). who is currently a US military Judge, summarized his opinion as follows:

"In short…Israel's defense forces are entitled to use whatever means is at her disposal to search out and destroy terrorist operatives. Nothing in international law precludes a vigorous, intense and effective military campaign to destroy terrorist operations. That means, Israel may use air and ground-artillery resources -as she will-against those Hamas operatives (I hesitate to us the word "military" - since Hamas is NOT a recognized military force.) which are used to inflict casualties upon Israel.

"That means Israel may use her army in large or small measure to attack any place or person that attacks Israel. That means Israel can bombard Hamas targets as militarily necessary to render it impotent against a subsequent wave of Israeli soldiers. Although politically preferable, nothing in international law absolutely requires Israel to use "smart" munitions in its operations against Hamas.

"If Hamas attempts to shield its operations with truly innocent civilians or children—it is Hamas and not Israel, who has committed an atrocity -an actionable war crime-of the most heinous proportion!"

In sum: Israel is free to employ ALL munitions, tactics, equipment and personnel in her arsenal to defend herself against the outlaw Hamas terrorist organization. Short of the intentional targeting and murder of truly uninvolved and innocent civilians, Israel can (and should) operate as freely as she desires to protect her territorial sovereignty and the lives of her citizens.

Earlier this year, the Human Rights Council of the United Nations established a fact finding mission on the Gaza conflict, headed by Richard Goldstone, with the mandate "to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza…".

Recently the commission released its "Goldstone Report," to a torrent of criticism. Apparently going beyond its mandate as a "fact-finding mission," it stated that Israel was guilty of war crimes, possibly crimes against humanity and targeted killings.

No criticism, however, was more damning than his own remarks after its release. In an interview with the Forward on October 2, Goldstone himself acknowledged the tentative nature of his findings:

"Ours wasn't an investigation, it was a fact-finding mission," he said, "We made that clear."

"We had to do the best we could with the material we had. If this was a court of law, there would have been nothing proven."

The Forward reports that:

"Goldstone emphasized that his conclusion that war crimes had been committed was always intended as conditional. He still hopes that independent investigations carried out by Israel and the Palestinians will use the allegations as, he said, "a useful road map."

"He recalled his work as chief prosecutor for the international war crimes tribunal in Yugoslavia in 1994. When he began working, Goldstone was presented with a report commissioned by the U.N. Security Council based on what he said was a fact-finding mission similar to his own in Gaza.

"We couldn't use that report as evidence at all," Goldstone said. "But it was a useful roadmap for our investigators, for me as chief prosecutor, to decide where we should investigate. And that's the purpose of this sort of report. If there were an independent investigation in Israel, then I think the facts and allegations referred to in our report would be a useful road map."

"Nevertheless, the report itself is replete with bold and declarative legal conclusions seemingly at odds with the cautious and conditional explanations of its author'

Reading Goldstone carefully leads to the conclusion that he wanted to force the issue to make Israel carry on an investigation to avoid the ICC, so the inquiry would be not so much a fact finding mission as a prod to force Israel to hold its own investigation, failing which it would fall to the ICC to prosecute it.

Was this why the Report concluded Israel was guilty? Because if it had it only said Israel might be guilty, according to the available evidence, then the pressure on Israel to hold its own hearings would have been greatly reduced?

But this is what NGOs, like Human Rights Watch and Amnesty International, have been doing for years: They do not say Israel may have committed war crimes but that Israel did commit war crimes. The reports are all about demonizing and delegitimizing Israel before the court of public opinion.

The ICC itself says that all accused are to be considered innocent until proven guilty beyond a reasonable doubt -- a basic human right. Too bad that the HRW and the others could not care less.

After the release of the Report, the New York Times published an Op-Ed by Richard Goldstone in which he wrote. "I believe deeply in the rule of law and the laws of war, and the principle that in armed conflict civilians should to the greatest extent possible be protected from harm."

While any country at war focuses on winning the war, Goldstone focuses protecting civilians. But if any civilians are killed as a consequence of Hamas fighting from among them, it is Hamas who committed the war crime, not Israel.

Not only does Military Judge Bruce Smith, quoted above, have a different opinion on what is and is not permissible, so does Colonel Richard Kemp (the former commander of British forces in Afghanistan), a modern leading military expert, "From my knowledge of the IDF and from the extent to which I have been following the current operation, I do not think there has ever been a time in the history of warfare when an army has made more efforts to reduce civil casualties and deaths of innocent people than the IDF is doing today in Gaza."

The Goldstone Report, therefore, has taken the best example of how wars should be fought and characterized it as the worse.

If Goldstone really cared about the rule of law, he would not have proceeded with or published this report. As his Report accuses Israel of war crimes, which, by his admission, he had insufficient evidence to prove, it is a shame he cannot be sued for libel.

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